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National Labor Relations Board Acting General Counsel Lacked Authority to Serve, But Still had Authority to Act, Court Says

Former National Labor Relations Board Acting General Counsel, Lafe Solomon, lacked authority to continue serving in that capacity after President Barack Obama nominated him for the General Counsel position early in 2011, the U.S. District Court for the District of Alaska has held. Hooks v. Remington Lodging & Hospitality, LLC, No. 13-00213 (D. Alaska Mar. 18, 2014). However, the Court also held that unfair labor practice (ULP) complaints Solomon issued against a hotel management company were nevertheless valid under the “de facto officer doctrine.” Solomon left the agency in November, 2013. Richard F. Griffin, Jr., was sworn in as General Counsel of the NLRB on November 4, 2013, for a four-year term, after being confirmed by the Senate.

While serving under Solomon, Ronald K. Hooks, Regional Director of Region 19 of the NLRB, issued a number of unfair labor practice complaints against Remington Lodging & Hospitality, LLC, in connection with an extended labor dispute with UNITE HERE Local 878. Hooks petitioned the District Court for a preliminary injunction against Remington under the National Labor Relations Act based on the administrative agency complaints issued in late-2011, after President Barack Obama had picked Solomon, Hooks’s superior, for the position of General Counsel of the NLRB and sent his nomination to the Senate. 

The company moved to dismiss the injunction petition, arguing that Solomon did not hold a valid appointment at the time Hooks issued the administrative complaints. It contended the administrative complaints underlying the injunction petition were invalid because the Board lacked a statutory quorum when the complaints issued and because Acting General Counsel Solomon, having been invalidly appointed, was not independently empowered to issue them. Hooks countered that he had the authority to issue the complaints because Solomon was validly appointed pursuant to the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345, et seq.

The company pointed the Court to several decisions supporting its argument that the administrative complaints were invalid. (NLRB v. Enterprise Leasing Company, 2013 U.S. App. LEXIS 14444 (4th Cir. July 17, 2013); NLRB v. New Vista Nursing and Rehabilitation, 2013 U.S. App. LEXIS 9860 (3d Cir. May 16, 2013); and Noel Canning v. NLRB, 705 F.3d 490, 403 U.S. App. D.C. 350 (D.D.C. 2013)). The Court found that whether the NLRB had a valid quorum at the time the complaints were issued was “not determinative of the validity of the administrative complaints issued by the Acting General Counsel….” The Court distinguished the cited decisions, reasoning that the courts there had found orders of the NLRBinvalid, whereas the question before the Court was the validity of an administrative complaint issued by a regional director acting on behalf of the Board’s General Counsel. The Court held the General Counsel has the “independent statutory authority to issue complaints….” It noted, but did not discuss, its divergence on this point with another district court, whose decision on the issue is on appeal to the Ninth Circuit Court of Appeals (Hooks v. Kitsap Tenant Support Services, Inc., No. 13-5470 (W.D. Wash. Aug. 13, 2013)). 

The District Court then reviewed Remington’s arguments that Solomon’s lack of independent authority precluded a subordinate agency official from lawfully issuing the complaints. The Court determined that because Solomon had never served at the level of a “first assistant” at the NLRB, his appointment did not meet the requirements of the FVRA. The Court further held Solomon lacked authority under a second provision of the FVRA that prohibits appointing an individual as an acting officer if the president “submits a nomination of such person to the Senate for appointment to such office.” It held that Solomon was “not eligible” under the FVRA “to serve as Acting General Counsel after he was nominated for the position.” In this regard, it agreed with the court in Kitsap.

Nevertheless, the Court found the complaints issued by Solomon were valid. The Court relied on the “de facto officer doctrine,” which “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient.” Remington first raised its argument that Solomon was not validly appointed in response to the Regional Director’s petition for injunctive relief, and the Court noted that Remington’s “failure to promptly object to the Acting General Counsel’s authority to issue the complaints, while not dispositive, weighs in favor of applying the de facto officer doctrine.” 

The Court found that applying the doctrine was appropriate because the General Counsel’s office was specifically exempted from the penalty provision of the FVRA precluding ratification of action by a person not validly acting under the FVRA. It also found that applying the doctrine to the complaints issued against Remington would support the NLRA’s policy of encouraging collective bargaining. The Court denied Remington’s motion to dismiss and granted the petition for a preliminary injunction. 

Despite the ultimate result in favor of the Acting General Counsel, we expect this decision to be appealed. We will update you as developments occur.

Jackson Lewis P.C. © 2019


About this Author

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.